Florida Appellate Practice Update: Florida Supreme Court amends 9.130 to provide for interlocutory appeals of orders granting or denying motions to amend to add claims for punitive damages. Expansion of interlocutory appeals seems at odds with proposed civil trial streamlining efforts.
On January 6, 2022, the Florida Supreme Court started the new year off with a bang, to wit: the Court amended Florida Rule of Appellate Procedure 9.130 to allow for appeals of nonfinal orders granting or denying motions to amend to add claims for punitive damages. A copy of the Florida Supreme Court’s opinion can be read here.
Previously, because interlocutory review was not expressly provided for under 9.130, the only avenue to challenge an order granting leave to amend to add a claim for punitive damages was via a petition for writ of certiorari. However, certiorari review was limited to ensuring that the procedural requirements established under section 768.72, Florida Statutes were followed. Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla. 1995). Under its certiorari jurisdiction, the courts of appeal lacked jurisdiction to review the sufficiency of the evidence considered by the trial court in granting leave to amend. Robins v. Colombo, 253 So.3d 94, 96 (Fla. 3d DCA 2018). Due to this limitation, so long as the procedural requirements of 768.72 were satisfied, defendants could not seek review of the sufficiency of the evidence until after a final judgment was rendered against them.
A delay in challenging the sufficiency of the evidence was potentially problematic for several reasons. A claim for punitive damages allows for otherwise prohibited financial discovery. As Florida’s Third District Court of Appeal has explained, “[f]rom a practical perspective, the granting of a motion for leave to amend a complaint to add a punitive damages claim can be a ‘game changer’ in litigation. Allowing a plaintiff to proceed with a punitive damages claim subjects the defendant to financial discovery that would otherwise be off limits, and potentially subjects the defendant to uninsured losses.” TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So.3d 516, 520 n.5 (Fla. 3d DCA 2016). Additionally, requiring a defendant to challenge the evidentiary sufficiency of a punitive damages claim only after a money judgment had been entered against it requires the defendant to post a bond to stay execution pending appeal. See generally, Fla. R. App. P. 9.310(b)(1).
The limitations associated with certiorari review resulted in mounting frustrations within the District Courts of Appeal. As a result, several Districts urged the Florida Bar Appellate Rules Committee to amend 9.130 to provide for interlocutory appeals of such orders. See Bentley Condominium Association, Inc. v. Bennett, 321 So.3d 315, 316 n.2 (Fla. 3d DCA 2021); Life Care Ctrs. of Am., Inc. v. Croft, 299 So.3d 588, 591-92 (Fla. 2d DCA 2020); Event Depot Corp. v. Frank, 269 So.3d 559, 565 (Fla. 4th DCA 2019) (Kuntz, J. concurring specially).
The Florida Supreme Court’s opinion was not unanimous. Justice Labarga dissented raising several concerns over the effects of the amendment. Justice Labarga explained that allowing for interlocutory appeals of punitive damage orders could bring about unwarranted and unnecessary delays to civil trials with the ultimate result being that certain plaintiffs, particularly those in personal injury cases, may forgo meritorious claims for punitive damages to avoid delay in exchange for much needed medical and economic relief. Justice Labarga noted that no other state had adopted a rule that provides for the interlocutory appeal of orders granting or denying leave to amend to add a claim for punitive damages.
The majority expressed serious concerns about the need to protect the financial information of defendants in cases where trial judges allow plaintiffs to amend their pleadings to assert punitive damages claims because, again, punitive damages claims can expose defendants to vastly greater financial discovery obligations. However, Justice Labarga explained that those concerns were alleviated through confidentiality orders and already protected by the existing certiorari review model.
Justice Labarga also took issue with the majority’s reliance upon the Rules Committee’s and the Board of Governors of the Florida Bar’s approval of the amendment. Justice Labarga explained that the Rules Committee had previously rejected prior proposals to amend 9.130 to provide for these appeals, but that the proposing subcommittee “felt constrained to propose an amendment upon concluding that the [Florida Supreme] Court’s referral was a directive to do so.” Justice Labarga noted that while the Rules Committee approved the amendment, it also approved the subcommittee’s recommendation that it would not have supported the amendment but for the mandate from the Florida Supreme Court.
It should be noted that the amended rule has the potential to vastly expand the amount of interlocutory appeals before the Florida District Courts of Appeal at the precise time when the Supreme Court is looking for ways to streamline civil litigation. In December 2021, it was reported in the Florida Bar News that the Florida Supreme Court is weighing proposals from the Judicial Management Counsel that would bring “sweeping changes” to Florida’s civil trial system, including tracking cases into “streamlined,” “general,” or “complex” categories and mandatory case management orders setting trial dates and deadlines for completing discovery, depositions, and dispositive motion practice. As chair of the JMC Judge Robert Morris explained, “[c]ontinuances are going to be very difficult to get in this new world…A trial continuance is going to be extremely difficult to get.” A copy of the Florida Bar’s article can be read here.
On its face, there seems to be an incongruence between the expansion of interlocutory appellate remedies and streamlining civil practice into tighter deadlines with less leeway for continuances. The changes proposed by the JMC are relatively commonplace at the federal trial court level. Yet, federal law provides for significantly less interlocutory appellate remedies than Florida.
Of course, the availability of an interlocutory appeal does not preclude initial review of a nonfinal order on appeal from the final order in a case. Fla. R. App. P. 9.130(h). However, the practical result of allowing such a remedy is that parties will seek review at the first opportunity in order to either avoid financial discovery or ensure that an opportunity to take financial discovery is allowed depending upon whether the order grants or denies leave to amend. In such an instance, although the trial court would not lose jurisdiction over the case while the appeal is pending unless a stay is entered, the trial court would be precluded from taking any action that would alter the order on appeal, including by entering a final order in the case until the appeal is resolved. Fla. R. App. P. 9.130(f). Should a backlog in the appellate courts occur, continuances would necessarily be required, thus tempering any perceived streamlining the new proposals will mandate.
With these factors in mind, it remains to be seen how the Florida Supreme Court aligns its efforts at streamlining Florida’s civil trial practice with the ever-growing number of available interlocutory appeals that have the ability to disrupt even the best-intentioned civil case management orders. Perhaps the creation of a Sixth District Court of Appeal in Florida will help with this backlog at some point, but until then Florida trial lawyers will need to be mindful of this significant new rulemaking.
Regardless of which side you’re on, FIDJ’s seasoned trial and appellate litigators can help you. Our appellate and trial support practice group is chaired by Jeffrey J. Molinaro, B.C.S., who is recognized by the Florida Bar as a Board Certified Specialist in Appellate Practice. For more information on how we can assist in your appellate or trial support needs, contact us at 305-350-5690 or info@fidjlaw.com.